The General Assembly of the State Bar Association of North Dakota passed a resolution authorizing the creation of a task force to study the multijurisdictional practice of law. The SBAND MJP Task Force was thereafter appointed. After a series of regional meetings and subcommittee work, the Task Force submitted its report and recommendations to the SBAND Board of Governors.

The Report, after amendment by the Board of Governors and approval by the General Assembly, was submitted to the Supreme Court for consideration. The Report recommended a series of amendments to Rules 5.5 and 8.5 of the Rules of Professional Conduct and to Rule 3 of the
Admission to Practice Rules to address issues posed by multijurisdictional practice (MJP).

The Supreme Court subsequently referred the Task Force Report to the Joint Committee on Attorney Standards for its review. The Joint Committee is charged by Supreme Court Administrative Rule 38 with the study and review of all rules concerning attorney professional
conduct and discipline.

The Joint Committee carefully reviewed the recommendations of the MJP Task Force and acknowledges the significant commitment of time and effort represented in the Task Force Report. After its review, the Joint Committee recommends a series of changes to the Task Force's
proposed amendments to Rule 5.5 and Rule 3 and with those changes recommends adoption of the amended rules. The Joint Committee does not propose any additional changes to Rule 8.5 and recommends its adoption as submitted by the Task Force.

The most notable point of departure between the recommendations of the Task Force and the Joint Committee is with respect to the pro hac vice admission process and its application to attorneys representing a client in an alternative dispute resolution (ADR) process. For reasons explained below, the Joint Committee proposes that a registration process would provide a more manageable method of monitoring attorneys involved in an ADR process. With those and other, less significant, additional changes, the Joint Committee recommends adoption of amended Rule 3 of the Admission
to Practice Rules. The proposed amendments to Rule 3 would require that Rule 11.1 of the Rules of Court, which currently governs pro hac vice admission, be superseded.

The proposed amendments to Rules 5.5 and 8.5 of the Rules of Professional Conduct and to Rule 3 of the Admission to Practice Rules, as submitted by the MJP Task Force and modified by the Joint Committee, are summarized below.

The proposed amendments to Rule 5.5 respond to a growing sentiment in the legal community against the application of blanket unauthorized practice restrictions to lawyers performing legal work outside their home jurisdictions. The amendments, however, maintain the basic premise that a lawyer may regularly practice law only in the jurisdiction in which the lawyer is admitted. To this general limitation, the amendments propose four general exceptions, "safe harbors", which permit a non-resident attorney to provide legal services on a temporary basis, and without licensure, in this
state.

Paragraph (b)(1) provides a general allowance for an in-house counsel or governmental lawyer (a lawyer who is an employee of a client or acts on behalf of a client or client-owned affiliate) to represent the client/employer in this state without being admitted. However, the allowance is temporary. If a non-resident corporate counsel establishes an office or other permanent presence in the state, then licensure, or registration under amended Rule 3 of the Admission to Practice Rules, would be required.

Paragraph (b)(2) provides a temporary safe harbor for non-litigation services ancillary to the non-resident attorney's work in the state in which the attorney is licensed. This provision is intended to provide general protection for kinds of work that are related to the attorney's provision of legal services in the state in which licensed. It reflects the general conclusion that it should be
sufficient to rely on the attorney's home state of licensure as the jurisdiction with the primary responsibility to ensure the attorney has the requisite character and fitness to practice law.

Related to this provision was the Task Force's proposed introductory language in paragraph (b), which referred to an attorney admitted in another jurisdiction who "represents a client" in this
jurisdiction. While paragraph (b)(2) addresses provision of non-litigation work related to the attorney's representation of a client in the attorney's home state, the Joint Committee was
concerned that the reference to "representing a client", coupled with paragraph (b)(2),would not address situations in which an attorney comes into North Dakota only occasionally and briefly to, for
example, interview a person to obtain information and "representation" of a client is not involved. The general exception for this kind of activity by a non-resident attorney has been long recognized
in caselaw. The Joint Committee sought to ensure the continuance of this general caselaw exception by changing the "representing a client" reference in the introductory paragraph (b)(2) language to one that focuses on performing legal services.

Paragraph (b)(3) provides a temporary safe harbor for an attorney authorized to represent a client, or preparing for a matter in which there is an expectation to be so authorized, in accordance with amended Rule 3 of the Admission to Practice Rules, which would govern registration and pro hac vice admission.

Paragraph (b)(4) recognizes the distinction between an attorney performing temporary legal services in this state in connection with out-of-state transactions versus those transactions that are pending in or substantially related to this state. In the latter situation, paragraph (b)(4) would require the non-resident attorney to associate with a North Dakota attorney as co-counsel in the representation of the client.

Paragraph (b)(5) would permit a non-resident attorney to provide services, on a temporary basis, that could be performed by a person without a license to practice law or without some other authorization from a governmental entity.

Paragraph (c), recommended by the Task Force and
unchanged by the Joint Committee, would establish two categories of allowable practice for non-resident attorneys who establish an office
or other permanent presence in this state. Related to paragraph (b)(1), paragraph (c)(1) would require that an attorney comply with the registration process under amended Rule 3. Alternatively,
paragraph (c)(2) would permit a non-resident attorney to perform legal services in this state if authorized by federal law or North Dakota statute or court rule.

Paragraph (d), patterned after an ABA MJP Commission draft, would prohibit a non-resident attorney from holding the attorney out as authorized to practice law in this jurisdiction. After submission of its report by the Task Force to the SBAND Board of Governors, the Board amended the provision to require a non-resident attorney providing legal services under paragraph (b) or (c) to disclose to the client that the attorney is not licensed in North Dakota. The Joint Committee further modified paragraph (d) to require the disclosure to be in writing. The Joint Committee was aware a writing requirement was discussed at some length by the Task Force and ultimately not adopted. The Committee concluded, however, that a writing requirement is appropriate and it is consistent with similar requirements included in other rules of professional conduct as part of the Committee's Ethics 2000-related review.

Paragraph (e) is a more succinct restatement of North Dakota's current rule provision and would prohibit an attorney from assisting another in the unauthorized practice of law.

Substantial revisions to the Rule 5.5 Comment explain the purpose and application of the rule's proposed new provisions.

The Task Force regarded current Rule 8.5 as adequately addressing MJP, disciplinary enforcement, and reciprocal licensure in North Dakota. The proposed amendments in the Comment simply reflect
the recommended revisions to Rule 5.5 and Rule 3. The Joint Committee concurred in the Task Force's assessment and no further modifications to the rule or comment are proposed.

Rule 3 is substantially revised to provide for pro hac vice admission and registration of non-resident attorneys. Revised Rule 3, Section A, would incorporate, with revisions, current Rule 11.1
of the Rules of Court, which now governs pro hac vice admission. In consequence, it is recommended that Rule 11.1 be superseded. Revised Rule 3, Section B, would establish a registration process for in-house counsel and, in an important departure from the Task Force's recommendation, for non-resident attorneys representing clients in this state in an ADR process. Each section of the revised rule is briefly described below.

Section A essentially restates current Rule 11.1 of the Rules of Court. Notable revisions would expand the pro hac vice admission requirement to appearances by a non-resident
attorney in an action before an administrative agency or other tribunal, in addition to in a trial court. An appearance by a non-resident attorney could be by appearing in person, signing pleadings, or by being designated as counsel in the action, as provided under current Rule 11.1. Proposed paragraphs
1 through 5 essentially restate current paragraphs (a), (b), (d), and (e) of Rule 11.1, with revisions to reflect the inclusion of appearances before administrative agencies and other tribunals.

The Task Force recommended that a non-resident attorney seeking pro hac vice admission pay a fee of $250. The Joint Committee modified this provision [paragraph (1)(a)(4)] to require a fee
(amount unspecified) equal to the fee required of an attorney who has been licensed for 5 years or more. The Committee concluded a general fee reference would be preferable to imposing a specific
dollar amount that might require revisiting if the general license fee were to change.

With respect to the affidavit required under Section A(1)(b), the Task Force retained the Rule 11.1 requirement that the attorney indicate whether the attorney is subject to a public disciplinary
proceeding in any jurisdiction. The Joint Committee deleted the "public" requirement, concluding that to do otherwise would eliminate an entire category of disciplinary proceedings from consideration by the admitting authority.

The most notable change from the Task Force's recommendation is with respect to pro hac vice admission for non-resident attorneys involved in ADR. The Task Force recommended that such admission be required of non-resident attorneys representing a party in a court-sponsored ADR process under Rules 8.8 and 8.9 of the Rules of Court. The Joint Committee declined to follow that approach and deleted the ADR-related language from Section A. After review and several discussions, the Committee concluded it was not clear how pro hac vice admission would apply to a private ADR process or why it would, or should, be limited to court-sponsored ADR activities.
Additional review also indicated that the procedural requirements, the "mechanics", for pro hac vice admission simply did not work with respect to an attorney involved in ADR, whether court-sponsored or private. The Committee discussed at length whether and how pro hac
vice admission should apply to non-resident attorneys involved in ADR and concluded a more workable approach would be to include involvement in ADR in the proposed registration component set out in Section B.

Section B, as previously noted, would establish a
registration process for non-resident attorneys who serve as in-house counsel or who represent a client in an ADR process. The introductory
paragraph sets out the predicate requirements for registration.

Section B(1)(a) would require an affidavit essentially similar to the affidavit required of an attorney seeking pro hac vice admission.

Section B(1)(b) would require an additional affidavit, or letter, for an attorney seeking registration. An attorney registering as in-house counsel must provide an affidavit from the attorney's
employer attesting that the registrant is employed as an attorney exclusively for the employer, that the registrant is of good moral character, and that the nature of employment qualifies the attorney for registration. An attorney registering to represent a client in an ADR process must submit a letter from the disciplinary authority in each jurisdiction in which the attorney is admitted indicating
the attorney is in good standing in the jurisdiction.

Paragraphs (2) through (6) of Section B would govern the
frequency of registration, continuing legal education requirements, limitations on and termination of registration, and when pro
hac vice admission would be required. More particularly: paragraph (3) would require an attorney registered as in-house counsel to complete at least 45 hours of approved CLE course-work during each
three year period the attorney is registered. The Joint Committee concluded this requirement should not apply to an attorney registering to represent a client in an ADR process as the attorney's presence
would likely be limited in duration and relatively infrequent, as opposed to the more long-term presence of an attorney registered as in-house counsel. Paragraph (4) would limit providing legal
services by way of registration to 5 years or until the attorney becomes eligible for admission, at which point the attorney must apply for and be admitted to practice law in the state. Paragraph (6) would require an attorney registered as in-house counsel to apply for pro hac vice admission if the attorney seeks to appear in an action before a court, administrative agency, or other tribunal in the state.

Section C would disallow pro hac vice
admission or registration for a non-resident attorney who
is under suspension, disbarment, or license restriction in any jurisdiction.

Section D would govern the use of fees received for registration and pro hac vice admission. As initially recommended by the Task Force, the section would have required that eighty percent of fees collected be submitted to the State Bar Association and used "according to law". The Joint Committee modified the proposed section to require that fees collected under the rule must be distributed in the manner described for distribution of license fees under NDCC Section 27-12-04. Such an approach would require that the State Bar Association receive $75 of each admission and registration fee for operation of the lawyer discipline system. Eighty percent of the remaining fee amounts would be distributed to the association for the purpose of administering and operating the association. Proposed Section D differs from the current fee disposition under Rule 11.1(d) of the Rules of Court, which requires that all pro hac vice admission fees be submitted to the association and used to fund the discipline system.

The Explanatory Note describes the general application of the revised rule.